Is joint custody the default in Arkansas child custody cases, and what did Act 604 of 2021 change?
Plain-English summary
Representative Wooten asked about the evolution of Arkansas joint custody law. The AG laid out three eras:
Before 2013. Joint custody was permitted but not favored. Courts ordered joint custody only when "circumstances clearly warranted it" (Dansby v. Dansby, 87 Ark. App. 156 (2004); Thompson v. Thompson, 63 Ark. App. 89 (1998)).
Act 1156 of 2013. Joint custody became "favored" in divorce actions. The shift was procedural rather than presumptive, since the act did not require courts to start from a presumption of joint custody or formally consider it.
Act 604 of 2021. Joint custody became presumed (rebuttable) to be in the child's best interest in original custody determinations in divorce or paternity actions. Other changes:
- Courts shall (not "may") consider awarding joint custody.
- A parent who is not granted sole, primary, or joint custody is entitled to "reasonable parenting time," absent a finding that parenting time would seriously endanger the child's physical, mental, or emotional health.
- If the court finds the presumption is rebutted, it must enter written findings explaining why and establish a parenting-time schedule that maximizes each parent's time consistent with the child's best interest.
Despite these changes, the child's best interest remains the "polestar" (Saunders v. Saunders, 2022 Ark. App. 428). The presumption yields when evidence shows joint custody would not serve the child's welfare. Joint custody is favored, but not mandatory (Allen v. Allen, 2021 Ark. App. 263).
What this means for you
If you are a divorcing parent or party to a paternity action
Under Act 604, joint custody is presumed to be in the child's best interest in an original custody determination in a divorce or paternity action. The opinion describes this as a rebuttable presumption: it gives way when the evidence shows joint custody would not serve the child's welfare. The opinion does not set out what evidence is required or how the burden is weighed beyond that.
If you are a family law attorney
The opinion confirms the framework rather than the factors: an original divorce or paternity custody determination starts from the Act 604 rebuttable presumption of joint custody, the court "shall" consider joint custody, and the best interest of the child remains the polestar (Saunders v. Saunders). The opinion does not enumerate best-interest factors or describe how to build a case for or against joint custody.
If you are a circuit court judge or guardian ad litem
The opinion states that when the court finds the presumption rebutted, it is required to enter written findings explaining the basis and to establish a parenting-time schedule that maximizes each parent's time consistent with the child's best interest. A parent not granted sole, primary, or joint custody is entitled to reasonable parenting time absent a finding of serious endangerment.
If you are a non-custodial parent
Under Act 604, a parent not granted sole, primary, or joint custody is entitled to "reasonable parenting time," unless the court finds that parenting time would seriously endanger the child's physical, mental, or emotional health. The opinion frames this as a statutory entitlement.
Common questions
Q: Does the Act 604 presumption apply to modifications of existing custody orders?
A: By its terms, the presumption the opinion describes applies to an "original child custody determination" in a divorce or paternity action. The opinion does not address custody modifications, so it does not tell you what standard governs a request to change an existing order.
Q: What rebuts the presumption?
A: The opinion does not list specific factors. It says only that the rebuttable presumption "yields when the evidence demonstrates that joint custody would not serve the child's welfare," with the best interest of the child remaining the paramount concern.
Q: Was joint custody ever the default before Act 604?
A: No. The opinion explains that before 2013, joint custody was permitted but not favored unless circumstances clearly warranted it. Act 1156 of 2013 made joint custody "favored" in divorce actions, but did not create a presumption or require courts to consider it. Act 604 of 2021 added the rebuttable presumption.
Q: Does the statutory preference for joint custody override the best-interest standard?
A: No. The opinion is explicit that the preference does not override "the ultimate guiding principle that the best interest of the child is the polestar for a custody determination." Joint custody is favored and presumed, but not mandatory (Allen v. Allen).
Citations and references
Statutes:
- A.C.A. § 9-13-101
- Act 1156 of 2013
- Act 604 of 2021
Cases:
- Dansby v. Dansby, 87 Ark. App. 156, 189 S.W.3d 473 (2004), pre-2013 standard
- Thompson v. Thompson, 63 Ark. App. 89 (1998), same
- Saunders v. Saunders, 2022 Ark. App. 428, post-Act 604 best-interest polestar
- Allen v. Allen, 2021 Ark. App. 263, joint custody favored but not mandatory
Source
Official summary
Question 1: Was joint custody the default arrangement in child custody prior to Act 604 from 2021?
Question 2: How did Act 604 change child custody law from Act 1156 of 2013?
Brief Response: To answer your questions together, joint custody was not the default or presumed arrangement before Act 604 of 2021. Although Act 1156 of 2013 marked a shift toward favoring joint custody in divorce actions, it did not require courts to presume it was in a child’s best interest or mandate consideration of joint custody. Act 604 amended A.C.A. § 9-13-101 to impose a rebuttable presumption that joint custody is in a child’s best interest in original custody determinations in a divorce or paternity action. It also requires courts to make written findings if that presumption is rebutted, mandates consideration of joint custody, and provides that noncustodial parents are entitled to reasonable parenting time, absent a finding of serious endangerment. Despite these changes, the child’s best interest remains the polestar for a custodian determination, and the rebuttable presumption yields when the evidence demonstrates that joint custody would not serve the child’s welfare.
Original opinion text
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2026-036
May 12, 2026
The Honorable Jim Wooten
State Representative
Post Office Box 280
Beebe, Arkansas 72012
Dear Representative Wooten:
I am writing in response to your request for an opinion regarding Arkansas’s joint custody laws,
specifically Act 1156 of 2013 and Act 604 of 2021. Act 1156 states that in an action for divorce,
an award of joint custody of minor children is favored. Act 604 added a rebuttable presumption
that joint custody is in the best interest of the child in actions concerning an original child custody
determination in a divorce or paternity matter. Against this background, you ask the following
questions, which I address together below:
1. Was joint custody the default arrangement in child custody prior to Act 604 from 2021?
2. How did Act 604 change child custody law from Act 1156 of 2013?
RESPONSE
Joint custody was not the default or presumed arrangement before Act 604 of 2021. The first
notable shift toward favoring joint custody occurred in 2013. Before 2013, joint custody was
permitted but not favored unless circumstances clearly warranted it.
1 With the adoption of Act
1156, the General Assembly changed that posture by declaring that joint custody was favored in
divorce actions.
2
While Act 1156 amended Arkansas law regarding joint custody in divorce actions, it did not
impose a rebuttable presumption that joint custody was in the best interest of the child or require
the circuit court to consider an award of joint custody. That changed with Act 604, which amended
A.C.A. § 9-13-101 to impose a rebuttable presumption that joint custody was in the best interest
of a child when the action concerned an original custody determination in a divorce or paternity
1 Dansby v. Dansby, 87 Ark. App. 156, 165–66, 189 S.W.3d 473, 480 (2004); Thompson v. Thompson, 63 Ark. App.
89, 92, 974 S.W.2d 494, 496 (1998).
2 A.C.A. § 9-13-101(a)(1)(A)(iii), as amended by Act 1156 of 2013.
The Honorable Jim Wooten
State Representative
Opinion No. 2026-036
Page 2
action.3
If the court finds the presumption has been rebutted, the court is required to enter written
findings explaining the basis for rebutting the presumption and to establish a parenting-time
schedule that maximizes each parent’s time with the child, consistent with the child’s best interest.4
Additionally, Act 604 amended the statute to state that “the circuit court shall [as opposed to may]
consider awarding joint custody of a child to the parents in making an order for custody.”5
Furthermore, the Act provides that a parent who is not granted sole, primarily, or joint custody is
entitled to “reasonable parenting time,” absent a finding that parenting time “would seriously
endanger the physical, mental, or emotional health of the child.”
6
This statutory preference does not override “the ultimate guiding principle that the best interest of
the child is the polestar for a custody determination.”7 While joint custody is the favored outcome
in original paternity and divorce actions, and while joint custody is presumed to be in the best
interest of the child, it is not mandatory.8 The rebuttable presumption established by Act 604 of
2021 yields when the evidence demonstrates that joint custody would not serve the child’s welfare.
The best interest of the child remains the paramount concern.
Assistant Attorney General Justin Hughes prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General
3
Id. § 9-13-101(a)(1)(A)(iv)(a), as amended by Act 604 of 2021.
4
Id. § 9-13-101(b)(3), as amended by Act 604 of 2021.
5
Id. § 9-13-101(b)(1)(A)(ii), as amended by Act 604 of 2021 (emphases added).
6
Id. § 9-13-101(b)(1)(A)(vii)(a), as amended by Act 604 of 2021.
7 Saunders v. Saunders, 2022 Ark. App. 428, 13–14, 653 S.W.3d 830, 838.
8 Allen v. Allen, 2021 Ark. App. 263, 13.